R v D

[2008] NZCA 254

IN THE COURT OF APPEAL OF NEW ZEALAND

CA335/2008
[2008] NZCA 254

THE QUEEN

v

PAUL LIARD STEMPA

Hearing:23 July 2008

Court:Robertson, Wild and Heath JJ

Counsel:M Lillico for Appellant

S B Edwards for Crown

Judgment:23 July 2008 at 11.45am

ORAL JUDGMENT OF THE COURT

A        THE APPEAL AGAINST SENTENCE IS ALLOWED.

B        The sentence imposed in the High Court is quashed.

CA term of 12 months’ home detention, subject to the conditions in [15], is imposed.

DA forfeiture order of $2,680 is imposed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       On 13 June 2008, the appellant was sentenced to two years and four months’ imprisonment on a charge of possession of methamphetamine for supply contrary to s 6(1)(f) of the Misuse of Drugs Act 1975 (‘the Act’).

[2]       Dobson J reviewed the circumstances of the offending and concluded that, in accordance with the authority of this Court in R v Fatu [2006] 2 NZLR 72, and having regard to recent sentencing decisions, the proper starting point could not be less than four years’ imprisonment.

[3]       He found that there were no particular aggravating or mitigating factors in respect of the offending.  This was accepted by the Crown.

[4]       The Judge did find, however, that there were powerful mitigating factors in the appellant’s favour including an early guilty plea, his commitment to rehabilitation and the incredibly strong and loyal support he enjoyed from family and friends.

[5]       Dobson J noted the positive pre-sentence reports from the Department of Corrections which indicated that if a prison sentence of less than two years was appropriate, then home detention was recommended.  Also, the appendix to the report confirmed the suitability of both the appellant and a proposed address with his current partner, for a sentence of home detention.

[6]       The Judge said at [27]:

However, you will appreciate that home detention is only an option if the prison sentence would be two years or less.  You have tacit support from the Crown for that, suggesting home detention and a substantial fine might be a sufficient deterrent in the circumstances.

[7]       He concluded at [28]:

However, making the absolute most I possibly can out of the combined effect of these numerous mitigating factors, I simply cannot reduce the four year starting point below two years and our month’s imprisonment.  That equates to a discount of nearly 42% which has to be viewed as lenient, as some 41% was in the case of Burton.

The Judge’s attention was not drawn to the decision of this Court in R v Hill [2008] NZCA 41.

[8]       As well an order was made for forfeiture of $2,680 in cash, pursuant to s 32(3) of the Act.

[9]       That day Mr Stempa filed an appeal against sentence on the basis that the sentence was manifestly excessive and home detention ought to have been granted.

[10]     The appeal was allocated a hearing date of 18 August 2008.  The appellant recently filed an application for bail pending the appeal.

[11]     In response, the Crown filed a memorandum acknowledging that the sentencing Judge had been under a misapprehension that there was no jurisdiction to impose a sentence of home detention where the sentence was one of two years and four months’ imprisonment.

[12]     The Crown accepts that this was an error and that, as Mr Stempa’s offending was on 23 May 2007, he was a ‘transitional offender’ in terms of Hill and accordingly home detention could have been imposed.  The Crown referred to the recent decision of this Court in R v Hall [2008] NZCA 207.

[13]     Like the Crown, we are satisfied from the tenor of the sentencing remarks that Dobson J would have imposed a sentence of home detention if he had known he had the jurisdiction to do so.

[14]     In all the circumstances, we are satisfied that home detention is an appropriate sentence.

[15]     The appeal against sentence is allowed and the sentence imposed in the High Court is quashed.  We note that Mr Stempa has already spent six weeks in custody and we have regard to that in the approach we take to a new sentence where we do not impose any fine or order for community service.  Mr Stempa is now sentenced to 12 months’ home detention at 71 Onepu Road, Wellington on the standard conditions in s 80C of the Sentencing Act 2002 and upon the special conditions imposed under s 80D(4), as follows:

(a)that Paul Stempa attend any counselling and/or programme directed at reducing his risk of re-offending if assessed as suitable and as directed by the Probation Officer; and

(b)that Paul Stempa abstains from alcohol and drug use and that he does not have alcohol or illicit drugs in his possession for the duration of the Home Detention Order.

[16]     There is a forfeiture order for $2,680 made under s 32(3) of the Act.

Solicitors:
Crown Law Office, Wellington